Counsel for Sgt Maurice McCabe told the Charleton tribunal that what had been done at the O’Higgins Commission hearings by former Garda commissioner Nóirín O’Sullivan’s (above) legal team ‘was done by Ms O’Sullivan’. Photograph: The Irish Times

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The former Garda commissioner Nóirín O’Sullivan was legally responsible for a false allegation made against Sgt Maurice McCabe at the O’Higgins Commission, the Charleton tribunal has been told.

The tribunal is hearing submissions at the end of a series of sittings where it is examining whether Ms O’Sullivan relied on “unjustified grounds” to discredit Sgt McCabe at the 2015 O’Higgins Commission hearings, which were held in private.

The Charleton tribunal, formally known as the Disclosures Tribunal, was established last year to investigate whether a smear campaign was orchestrated against Sgt McCabe by Garda Headquarters arising from his whistleblowing activities.

In a submission on the sergeant’s behalf on Thursday, Michael McDowell SC said what had been done at the O’Higgins Commission hearings by Ms O’Sullivan’s legal team “was done by Ms O’Sullivan”.

Any effort to discredit Sgt McCabe in an inappropriate manner using unjustified grounds, was done on Ms O’Sullivan’s behalf, as a matter of law, the tribunal was told.

This was the position that had to be presumed by the tribunal until it was “displaced,” Mr McDowell told Mr Justice Peter Charleton.

Subjective intentions

He was not saying the tribunal could not distinguish between “what was done” and Ms O’Sullivan’s “subjective intentions”.

The legal team that represented Ms O’Sullivan at the commission hearings also represented a number of senior Garda officers who had been the subject of complaints by Sgt McCabe which were found by the commission to be without any basis.

Mr McDowell said it was Ms O’Sullivan’s decision that the same legal team would act for her and the other officers.

On the first day of evidence at the commission, May 14th, 2015, the chairman, Mr Justice Kevin O’Higgins, said witnesses were not to be “ambushed” and parties intending to criticise a witness must make a prior application.

On May 15th, 2015, when Ms O’Sullivan’s legal team began to raise matters that might reflect on Sgt McCabe’s motivation for making complaints, it was asked if this was being done on Ms O’Sullivan’s instructions.

It was confirmed it was and the legal team was then instructed to produce a document outlining the case it wanted to make.

This document, when submitted the following Monday by a solicitor from the Chief State Solicitor’s Office, contained a false allegation against Sgt McCabe which it was later submitted was made in error.

The tribunal has heard evidence as to whether the error was made by Ms O’Sullivan’s legal team at the commission or whether the lawyers correctly understood the instructions it received from Garda officers. This is a matter which the tribunal may give a view on in its report.

The legal team did not communicate with Ms O’Sullivan during the preparation of the document, although it did communicate with Chief Superintendent Fergus Healy, who was her representative at the commission hearings.

Consultation

The tribunal has heard the then Garda commissioner did not meet any member of the legal team until later.

Ms O’Sullivan’s solicitor, Annmarie Ryan, gave evidence to the tribunal of trying unsuccessfully to arrange a consultation with Ms O’Sullivan though Chief Supt Healy on the weekend the submission was being drafted, while Ms O’Sullivan has said she would have gladly have attended a consultation if she had known one was being sought.

Mr McDowell said there was a “chasm” between the two versions being presented to the tribunal on this matter.

Mr McDowell said the document containing the incorrect allegation was submitted on Ms O’Sullivan’s behalf and “nobody else”.

The commission transcripts showed it was clearly the impression formed by the chairman of the commission in May 2015 that Ms O’Sullivan was trying to “impugn” the integrity of Sgt McCabe.

Nothing was done to correct this impression until the following November, Mr McDowell said. Yet Ms O’Sullivan has confirmed to the tribunal that she was reading the commission transcripts.

There was every opportunity to change the record “but no such opportunity was taken” until November 2015, Mr McDowell said.

The error in the May 18th document concerned what had happened at a meeting in Mullingar in 2008. In his evidence to the tribunal earlier this week, Sgt McCabe said it remained his view that if he had not had a secret recording of the meeting, which he produced at the commission after the May 18th submission, the error would not have been identified.

False allegation

He said this remained his view despite the fact that, on the same morning that the submission containing the false allegation was given to the commission, a 2008 report by Supt Noel Cunningham, who had attended the Mullingar meeting, was also submitted.

This report conflicted with the legal submission and agreed with the secret recording Sgt McCabe had made of the meeting. Ms O’Sullivan’s legal team was also representing Supt Cunningham.

The matter was resolved at the commission.

The commission said Ms O’Sullivan’s legal team’s scope for challenging Sgt McCabe’s motivation at the commission hearings was to be limited to putting it to him that he had a grievance against the gardaí.

Mr Justice Charleton has said the submission made May 18th, 2015, was full of errors. Supt Cunningham has told the tribunal the paragraph that preceded the false allegation, gave a correct version of what had happened in the previous paragraph.

He said he was given the document to review on the morning that it was handed to the commission, but failed to spot the error.

The tribunal is to hear submissions from a number of interested parties this afternoon.